论劳务派遣制度重整——兼评《劳动合同法修改决定》

The Reforming of Labor Dispatch System——A Review of Decision of Modifying the Labor Contract Law

劳务派遣是标准劳动关系的变形,但可以还原之,在双方法律关系的框架下厘定三个当事人之间的权利义务,而不必创设新的理论模型。对于劳务派遣"泛岗位化"的治理,指出立法可以有直接的禁令和间接的引导两种选择。立法既然选择了禁令模式,就应当及时完善相关规范,动员和部署行政执法和司法力量,保证禁令的落实,而决不能轻诺寡信,打"法律白条",让公众失望、令劳动者寒心。

Labor dispatch is a variation of standard labor relations, but the rights and obligations among the three parties involved can be established under the framework of both parties＇ legal relationship without creating a new theory model. As for the governance of excessive generalization of posts in labor dispatch, there are alternatives between strict ban and restriction under guidance in legislation. Now that it is strictly banned by law, relevant specifications should be perfected timely, executive law enforcement and judicial power should be effectively deployed to safeguard the implementation of the ban, so as not to break the law and let the public down and make laborers chilling.